Morris v The Queen

[2010] NZCA 364

IN THE COURT OF APPEAL OF NEW ZEALAND

CA244/2010
[2010] NZCA 364

BETWEENDARRIN JOHN MORRIS

Appellant

ANDTHE QUEEN

Respondent

CA289/2010

AND BETWEEN  THE QUEEN

Appellant

ANDDARRIN JOHN MORRIS

Respondent

CA290/2010

AND BETWEEN  THE QUEEN

Appellant

ANDBLAIR JAMES GILLIGAN

Respondent

CA291/2010

AND BETWEEN  THE QUEEN

Appellant

ANDCLAYTON CLANCE MORRIS BISHOP

Respondent

CA292/2010

AND BETWEEN  THE QUEEN

Appellant

ANDJACQUELINE MARIE POLL

Respondent

Hearing:21 July 2010

Court:O'Regan  P, Panckhurst and MacKenzie JJ

Counsel:G J King for Morris

S B Edwards and J E Mildenhall for the Crown
L C Ord for Gilligan
T Rickard-Simms for Bishop
J M Miller and S A Thistoll for Poll

Judgment:11 August 2010 4 pm

JUDGMENT OF THE COURT

AWe grant leave to the Solicitor-General to appeal against the sentences imposed on all of the respondents, but dismiss the appeal in all cases.

B            We allow Mr Morris’s appeal against sentence.  The sentence imposed on him in the High Court is quashed and a sentence for four and a half years imprisonment is substituted. 

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No

Introduction  [1]

The appeals  [2]

The factual basis of the sentencing  [3]

Factual disputes  [6]

Disparity  [10]

The sentences imposed by the Judge  [11]

Mr Morris (CA244/2010)  [12]

Mr Gilligan (CA290/2010)  [16]

Mr Bishop (CA291/2010)  [19]

Ms Poll (CA292/2010)  [22]

The Crown’s appeal  [25]

Starting point: Mr Morris  [26]

Starting points for the other offenders  [32]

Sentence: Mr Morris  [34]

Sentence: Mr Gilligan  [35]

Sentence: Mr Bishop  [41]

Sentence: Ms Poll  [43]

Result  [44]

Introduction

[1]        The respondents were charged with aggravated robbery and wounding with intent to cause grievous bodily harm after an incident in which the victim was beaten and robbed of some $8,000.  They were tried before Joseph Williams J and a jury.  They were convicted and sentenced as follows:

(a)Mr Morris was found guilty of both aggravated robbery and wounding with intent to cause grievous bodily harm.  He was sentenced to six years imprisonment.

(b)Mr Gilligan was also found guilty of aggravated robbery and wounding with intent to cause grievous bodily harm.  He was sentenced to 12 months home detention and 160 hours of community work, and ordered to pay reparation of $3,000 to the victim at $40 per week.

(c)Mr Bishop was found guilty of aggravated robbery, but acquitted on the wounding charge.  He was sentenced to imprisonment for two years and eight months and ordered to pay reparation of $1400 to the victim.  That sum was paid immediately.

(d)Ms Poll was found guilty of aggravated robbery but acquitted on the wounding charge.  She was sentenced to six months home detention and 100 hours community work and ordered to pay reparation of $2,500 at $40 per week.

The appeals

[2]        The Solicitor-General seeks leave to appeal against the sentences imposed on all four respondents.  Mr Morris cross-appeals against sentence.  The focus of the Crown appeal against Mr Gilligan and Mr Morris’s cross-appeal is the disparity between the sentences imposed on Mr Morris and Mr Gilligan respectively.  Mr Morris originally filed an appeal against conviction also, but has now formally abandoned the appeal against conviction.

The factual basis of the sentencing

[3]        The sentencing Judge faced the difficulty that the jury’s verdicts did not square up entirely with the victim’s evidence or the Crown case.  In order to understand the difficulties he faced, it is appropriate to set out his summary of the Crown version of events, and then the factual basis on which he decided that the sentencing would proceed. 

[4]        The Judge described the Crown’s view as follows:

[8]         The Crown says that on or before 2 December 2008, you Darrin Morris used knowledge you gained from your friendship with Matthew Ralton to hatch a plan with Blair Gilligan to get Matthew Ralton drunk, take him somewhere quiet, attack him, and steal $8,200 from him.  Mr Morris you had the inside knowledge because he thought you were his friend, and Mr Gilligan you had the car.  The money had been obtained that afternoon from a bank in Upper Hutt.  It was in cash.  It was a loan to buy a vehicle.  Darrin Morris you were at the bank with Matthew Ralton and you arranged for Blair Gilligan to take you and Matthew Ralton to Otaki to get the vehicle.

[9]         After Matthew Ralton withdrew the money, the three of you collected Clayton Bishop.  The four of you went to a bowling alley in Lower Hutt.  There you met Jacqueline Poll.  The Crown says Clayton Bishop you spent $400 on shots for the group.  Blair Gilligan you and Darrin Morris texted each other about your plan.  The texts show, the Crown says, that violence as well as theft was in your plan.  In your texts you also discussed enlisting Jacqueline Poll to “distract” Matthew Ralton.  You said Matthew Ralton needed to be more drunk for the plan to work.

[10]       Blair Gilligan you were the driver, the rest of you three were passengers along with Matthew Ralton.  You left to head north.  During the trip you Darrin Morris and you Blair Gilligan continued to text each other (although Mr Morris you were using Jacqueline Poll’s cellphone because yours had gone flat).  The seller of the car told Matthew Ralton by phone that he was not interested in handing over the car that late but you kept heading north anyway.  Blair Gilligan you said you had a friend in Levin you could visit.  In texts between you and Darrin Morris your plan was finding a “low key place” to stop, and you discussed taking Matthew Ralton’s phone so that he could not call for help.  At some time after 8.30pm, you all drove him to Peka Peka Beach Road – a quiet, no exit, rural road on the Kapiti coast.

[11]       The Crown says you Jacqueline Poll led Matthew Ralton out of the car and distracted him by an offer of sex.  You went to an area of bush and the others prepared for the attack and robbery.  Others of you got a metal tool, the Crown says, from the boot of the car.

[12]       Mr Gilligan, Mr Bishop and Mr Morris you then attacked Matthew Ralton.  He says that he was punched and hit in the head with some form of metal tool, and then kicked and punched once he fell to the ground.  He said you Blair Gilligan initiated the attack.  He said you Clayton Bishop then joined in, struck him with metal tool on the head.  And he said you Darrin Morris joined in last.

[13]       Darrin Morris and Clayton Bishop you then threatened Matthew Ralton and told him to hand over the money or suffer the consequences.  Matthew Ralton’s evidence is that you Clayton Bishop had your foot on his throat while you made that threat.  One or other of the three of you took Matthew Ralton’s cellphone, his $8,200 in cash, and his Eftpos card.

[14]       The Crown says at some point after the attack started, Jacqueline Poll yelled at the men to stop.  Ms Poll you tried to assist Matthew Ralton, who pretended to be dead in order to make the attack stop.  You were ordered back into the car by Blair Gilligan who said “he is dead”.

[15]       You then left Matthew Ralton on the ground, bleeding from a wound to the head, where the attack had taken place and drove back to Wellington, staying the night at the Copthorne Hotel.  Matthew Ralton managed to get to a nearby residence at Peka Peka and was given assistance.  He was eventually transported to Lower Hutt hospital where he was treated.

[16]       A scene examination the following day located blood on the road.  A search of Blair Gilligan’s vehicle located traces of blood on the side and rear of the headrest of the driver’s seat.  A blood-stained pair of jeans and a pair of shoes that you were wearing Darrin Morris that night were located by the police in the days following the attack.  Mr Morris you had thrown the gear into some bushes in Lower Hutt, having been driven there by Mr Gilligan.

[5]        The Judge set out the alternative versions of events contended for by the respondents and, having evaluated each of those, concluded that the factual basis for sentencing would be as follows:

[24]       Clearly on the basis of the verdicts returned, it must now be accepted as beyond reasonable doubt that all of you were involved in some way in the aggravated robbery of Matthew Ralton.  This means in my firm view Mr Bishop, that the jury did not believe your story.  In addition, Darrin Morris and Blair Gilligan the jury’s verdict indicate obviously that you participated in some way in wounding Matthew Ralton while intending to cause him serious harm.

[25]       In respect of the wounding with intent to cause grievous bodily harm charge, the Crown says, relying primarily on the evidence of Matthew Ralton, that Blair Gilligan landed the first blow.  Blair Gilligan on the other hand says he was the driver and accepts responsibility as a party to the offence but says he never struck a blow himself.  He is able to rely on the admissible hearsay given at trial about what Darrin Morris apparently said to others about Blair Gilligan’s involvement.  He relies also on the lack of evidence of blood in and around the driver’s area of his car.

[26]       The fact that the jury found Clayton Bishop not guilty of wounding with intent to cause grievous bodily harm must mean, in my view, that he could not have struck Matthew Ralton with the weapon the Crown alleges caused the head injury.  The wound therefore can only have been caused by one of Darrin Morris or Blair Gilligan.  The lack of blood in the driver’s compartment of the car and the blood in the area where you Darrin Morris sat suggests very strongly that it was you Darrin Morris who caused that wound.  That is in my view how it happened.

[27]       The wounding with intent verdicts are therefore consistent either with Blair Gilligan participating alongside Darrin Morris in an attack in which Clayton Bishop you had a lesser role, or Blair Gilligan participating as a knowing party through being the driver.

[28]       I propose to adopt the least serious scenario from your point of view Mr Gilligan.  I realise that this means proceeding on the basis that you did not strike the first blow.  I take this view on the basis that the jury clearly did not accept Mr Ralton’s evidence that you Clayton Bishop had struck him three times with a weapon.  I take it also because Mr Ralton quite freely accepted that he had issues with accuracy of memory even if he denied such a problem in this case; and also because, like all present that night, Mr Ralton accepted that he had been drinking heavily.

[29]       In my view, the crucial and undisputed facts are that there was a vicious attack on Mr Ralton at Peka Peka Road on the evening of 2 December, in which he received bruising and a single 3 centimetres cut to the head requiring three stitches.  During or after the attack he was robbed by this group of $8,200 in cash, his Eftpos card and cellphone, and then left for dead.

[30]       What was hazy in Mr Ralton’s evidence and what led to greater reliance on other evidence given in the trial was the nature and quality of Mr Ralton’s recollection of who did what to him and when.  His recollection, accurate or not, developed over time.  Given the trauma of these events, in my view, any inaccuracies in his evidence are entirely understandable.  On the other hand I found the evidence from Mr Gilligan’s defence on the extent of his involvement to be persuasive, despite the fact that it was admissible heresay, and I accept that evidence as generally accurate in the sense that it suggests you Mr Gilligan had the role of driver.

[31]       Jacqueline Poll, the jury accepted, as do I, that you knew of the plan to rob Matthew Ralton, and you participated in some way in it.  The jury clearly rejected your argument that you withdrew from the plan in time.

[32]       Thus, the factual basis upon which I will sentence is therefore as follows:

a)Darrin Morris – you planned this attack, you carried it out, and you inflicted the head wound requiring treatment;

b)Blair Gilligan – you were aware of and participated in the planning of the attack.  Your role was to drive to and from the site where the attack occurred but you did not participate directly;

c)Clayton Bishop – you participated directly in the robbery and threatened Matthew Ralton but did not inflict the head wound on him.  Because you were not privy to the text between Darrin Morris and Blair Gilligan you did not know of the planned robbery until it played out, though you participated in it once it began.  And you did not know that Darrin Morris would wound Matthew Ralton intending to cause him serious harm;

Given the inconsistency between the jury’s verdict and Mr Ralton’s evidence that you wielded the weapon, there is real doubt in my view about whether a weapon was used at all.  Mr Ralton in his evidence accepted that he did not see the weapon, it was rather the blows felt like a weapon and he thought he heard something metallic hit the ground.  The Crown says it is inherently unlikely that Mr Ralton would have been struck on the head by fists, but I do not agree.  There are a number of scenarios in which punches to the top of the head would be reasonable to see.  I prefer Darrin Morris’ acceptance that he struck Mr Ralton in the head with his fists, perhaps when Matthew Ralton was bowed over, the usual response to a physical attack, or as Mr Rickard-Simms suggests, perhaps in a headlock.  I am quite satisfied that punches are capable of causing a 3 centimetre cut in someone’s head.  That is the basis upon which I will sentence.

d)Jacqueline Poll – you became aware of the robbery plan (either at the bowling alley or at some point during the journey north) – it does not matter which.  You contributed to the plan by your willingness to flirt with Matthew Ralton in order to distract him (even though the evidence suggests that his need to relieve himself at the site made your intervention quite unnecessary).  I accept because the evidence is uncontroverted that you very quickly regretted the whole venture and you tried to stop it at an early stage albeit too late.  I accept also that you tried to put things right by tending to Matthew Ralton as he lay there, and that you were required to leave against your better judgement.

Factual disputes

[6]        Although aspects of the Judge’s factual basis of sentencing were contested, all counsel apart from Mr King, counsel for Mr Morris, accepted that the appeal should proceed on the basis of the version of events summarised by the Judge at [32] of his sentencing notes.

[7]        One of the difficulties faced by the Judge was that the victim’s version of events was that Mr Bishop had attacked him with a weapon and that Mr Morris had then joined the fray later.  The acquittal of Mr Bishop indicated that the jury did not accept that aspect of the victim’s evidence.  That provided something of a conundrum for the sentencing Judge, which he resolved by concluding that Mr Gilligan had not exited the car at all and was therefore guilty of wounding only as a party, and that Mr Morris had been the main instigator in meting out the violence. 

[8]        Mr King argued that there was not a proper evidential basis for that conclusion, given that it did not square up with the evidence of the complainant.  He argued that the Judge had correctly concluded that the verdict did not support the proposition that Mr Bishop had been the prime instigator of the violence, but said that the elimination of Mr Bishop from the equation did not justify the conclusion that Mr Morris must have been the prime instigator, nor the attribution to Mr Morris of the major role in the violence and the causing of the wound that required stitching.

[9]        We consider that there is merit in Mr King’s submission.  The disconnect between the verdicts and the Crown case made this a difficult sentencing exercise, and we sympathise with the Judge’s dilemma.  Ultimately we have determined that the better approach to the sentencing exercise was to treat the offending as aggravated robbery which involved actual and serious violence.  That is not to ignore the convictions for wounding with intent to cause grievous bodily harm, but to reflect the fact that the wound suffered by the victim was not, in fact, particularly serious and that the overall culpability of the offenders is best assessed if the aggravated robbery is seen as the essential offence, with the violence as an aggravating aspect to it.  That approach also avoids the difficulties inherent in reconciling the Crown case and the victim’s evidence with the jury’s verdicts.  We do not consider that the Judge could safely attribute to Mr Morris responsibility for the wound on the basis of the victim’s evidence.

Disparity

[10]       A common theme of Mr Morris’s appeal and that of the Solicitor-General against Mr Gilligan’s sentence was the disparity between the sentences imposed on Mr Morris and Mr Gilligan and, to a lesser extent, those imposed on the other respondents.  Counsel for Mr Gilligan, Ms Ord, accepted that disparity was a real issue but, unsurprisingly, submitted that the solution to the problem was to lower Mr Morris’s sentence, rather than to increase Mr Gilligan’s.  For reasons which we will come to we are satisfied that there is a disparity in this case of the kind described in R v Lawson.[1]

The sentences imposed by the Judge

[1]      R v Lawson [1982] 2 NZLR 219 (CA).

[11]       Before turning to the issues arising in the appeal, we summarise briefly the sentences imposed on each of the respondents and the Judge’s reasoning.

Mr Morris (CA244/2010)

[12]       In sentencing Mr Morris, the Judge took into account that he was the ring-leader.  Mr Morris planned the robbery with Mr Gilligan and he delivered the head wound that caused the worst injury.  The Judge set a starting point of five and a half years, which took into account the aggravating factors particular to the offending.  These included the level of violence used, that Mr Morris breached the trust of his supposed friend, that Mr Ralton was outnumbered, that the attack occurred at an isolated location and that Mr Ralton was abandoned for dead after the attack and robbery. 

[13]       Mr Morris had previously been convicted of a similar offence involving aggravated robbery, kidnapping for gain, and behaving threateningly with a weapon.  For this, the Judge uplifted his sentence by six months.

[14]       No mitigating factors were taken into account.  Although Mr Morris was only 18 years old at the time of the offending, the Judge did not think that the circumstances were such that a discount would be appropriate to take into account his youth.  Further, the Judge saw the “limited remorse” as insufficient to justify any discount.  The willingness to do rehabilitative programmes was also taken into account, but no discount was made.  

[15]       The Judge did not impose a minimum period of imprisonment.

Mr Gilligan (CA290/2010)

[16]       The Judge accepted that Mr Gilligan did not play a direct role in the robbery or the wounding with intent and that his role was limited to being a driver.  Nevertheless, he was aware of the plan and supported it despite the risk of harm to Mr Ralton.  He adopted a starting point of three years and six months. 

[17]       The Judge was prepared to make considerable allowance for a number of mitigating factors.  These included the fact that Mr Gilligan was the sole provider for his family, which consisted of his partner, her three year old son, and their 12 month old baby.  Further he noted the considerable effort that Mr Gilligan had put into turning his life around since the offending.  He had joined a church community, was holding down a steady job, had enrolled in a Stop Violence programme and voluntarily presented for drug and alcohol assessment.  His friends and community members filed extensive submissions asking for leniency.  The Judge allowed a one year discount for these factors.  Further, the Judge gave a six month discount to take into account Mr Gilligan’s offer to make reparation of $2,000.  This put the sentence at two years imprisonment, bringing into play the possibility of a sentence of home detention.

[18]       The Judge increased the amount of reparation to be paid to $3,000 (payable at $40 per week) and imposed a final sentence of 12 months home detention and 160 hours community service. 

Mr Bishop (CA291/2010)

[19]       Mr Bishop received a sentence of two years, eight months imprisonment and was ordered to pay reparation of $1,400 for the aggravated robbery conviction. He was found not guilty of the wounding with intent charge.  The Judge assessed his culpability as being much less than that of Mr Morris, but on a par with that of Mr Gilligan.  He was not involved in the planning of the offence, but did participate directly in the attack and the robbery.  He threatened Mr Ralton, and put his foot on his throat. 

[20]       The Judge adopted a starting point of three years.  The Judge took into account the fact that he was older than the other offenders, at 26 years, and had a two year old son.  He had previous convictions for threatening to kill, grievous bodily harm, burglary, theft and resisting police.  No uplift or discount was applied for these factors. 

[21]       A discount of four months was made to reflect Mr Bishop’s willingness to pay reparation, which was paid in full in one lump sum.  The left a final sentence of two years, eight months imprisonment.

Ms Poll (CA292/2010)

[22]       The Judge noted that Ms Poll was involved to a limited extent in the planning.  However, she got out of the car with Mr Ralton at the time of the robbery and offered him sexual favours, apparently as part of a plan to distract him and facilitate the robbery.  There was no evidence she knew that there was to be violence.  The Judge took into account the fact that Ms Poll tried to stop the violence and tended to Mr Ralton, giving him CPR and checking for a pulse.  She was reluctant to leave Mr Ralton but was afraid of the others.  Accordingly, her involvement in the offending was the least. 

[23]       The Judge took into account that Ms Poll had a limited criminal history (one conviction for drunk driving), her youth (she was 18 years old at the time) and the fact that she showed genuine remorse for her involvement and had high prospects of rehabilitation.

[24]       He adopted a starting point of one year, six months imprisonment.  He then discounted this by six months to reach an adjusted starting point of imprisonment of one year.  He decided that home detention was appropriate.  The final result for Ms Poll was for six months home detention, 100 hours community work and an order that she pay $2,500 in reparation at $40 per week. 

The Crown’s appeal

[25]       The Crown submitted that the sentence imposed on each respondent was too lenient.  The position taken can be summarised as follows:

(a)Mr Morris:  The starting point ought to have been seven years imprisonment and the end sentence seven and a half years imprisonment. 

(b)Mr Gilligan:  The starting point ought to have been six years imprisonment and the end sentence ought to have been four years imprisonment.

(c)Mr Bishop:  The starting point ought to have been four and a half years imprisonment and the final sentence ought to have been four years and two months imprisonment.

(d)Ms Poll:  The starting point ought to have been two and a half years imprisonment and the final sentence ought to have been 12 months home detention.

Starting point: Mr Morris

[26]       We see that the essential building block of the disposition of the appeal as setting the appropriate starting point for the offender with the greatest culpability, Mr Morris.  As noted the Judge adopted a starting point of five and a half years and the Crown says a starting point of seven years ought to have been adopted.  On the other hand Mr King argued that a starting point of three and a half years was sufficient, given that the proper sentencing approach was to treat the wounding as an aggravating factor in relation to the aggravated robbery, rather than as a stand alone offence requiring recourse to the sentencing approach set out in R v Taueki.[2]

[2]      R v Taueki [2005] 3 NZLR 372 (CA).

[27]       While we accept that the offending is best viewed as an aggravated robbery with additional serious violence, we do not think that a starting point of three years six months imprisonment would adequately reflect the culpability of Mr Morris.  Even allowing for the fact that there was no direct evidence that Mr Morris was the instigator of the violence or the principal attacker, he was still party to an aggravated robbery in which serious violence featured, and in respect of which the Judge correctly found him to be the person who was the principal planner.  His friendship with Mr Ralton made the offending even more reprehensible. 

[28]       The leading decision of this Court in relation to aggravated robberies is R v Mako.[3]  In that case the Court gave specific examples of aggravated robberies and suggested starting points.  One of those examples was an aggravated robbery of a person involved in commercial operations, such as a dairy owner or a taxi driver.  The Court suggested a starting point of around five years imprisonment in such a case where actual violence was used.  Crown counsel Ms Edwards suggested that

this was the closest to the present situation because the defining characteristic of the taxi driver or shop owner was their vulnerability, and Mr Ralton was also vulnerable in the present case from the time Mr Morris accompanied him to the bank to collect his loan.  Another example provided in Mako is a street robbery where no serious violence is involved.  In such cases starting points between 18 months and three years would be appropriate, with starting points at the higher end when actual violence is involved.

[3]      R v Mako [2000] 2 NZLR 170 (CA).

[29]       In this case, we see the offending as falling somewhere between those points.  We note the degree of premeditation, particularly on the part of Mr Morris, the use of alcohol to disable the victim and facilitate the offending, the fact that four offenders were involved, the actual violence inflicted on the victim (which necessitated three stitches and hospital treatment, though had no lasting effect) and the fact that the victim was abandoned in a remote area, apparently being left for dead. 

[30]       Ms Edwards urged a starting point of at least seven years, and said that a starting point of nine years would have been within range.  That submission depended on our acceptance that Taueki also applied to the offending and our acceptance that Mr Morris had been involved in the infliction of actual violence, being the prime instigator of the violence.  For the reasons we have already given we see the offending in a lower category than that, and note that the Crown submissions depended on the large part on our sentencing on the Crown view of the case as described by the Judge, rather than the factual basis eventually accepted by all counsel, including Crown counsel.  In Mr Morris’s case, the offending is further diminished by our rejection of the Judge’s view that Mr Morris was the prime instigator of the violence.

[31]       Ultimately we are satisfied that a starting point in the range of four and a half years imprisonment was appropriate for the aggravated robbery, and we consider that that also reflects the actual infliction of violence on the victim as an aggravating feature.

Starting points for the other offenders

[32]       From that base we now consider the starting points for the other offenders.  We acknowledge the validity of Mr King’s submission that Mako suggests that in pack offending all offenders should be treated in broadly the same way.  Similar comments were made by this Court in R v Jamieson.[4]Nevertheless, we recognise that, as the Judge characterised the roles of the offenders in this case, Mr Gilligan’s role was less significant than that of Mr Morris.  In particular he was not involved in the early stages of planning and on the Judge’s finding he remained in the car and did not take part in the violence.  In those circumstances we consider that a starting point of four years imprisonment would be appropriate, given that on the Judge’s findings Mr Gilligan was not involved in the early stages of planning and did not take place in inflicting the actual violence. 

[4]      R v Jamieson [2009] NZCA 555 at [27] – [30].

[33]       The Judge adopted a starting point of three years imprisonment for Mr Bishop, which in our view was lower than necessary to reflect the seriousness of the offending.  We believe a starting point in the vicinity of three and a half years was appropriate.  We would not, however, interfere with the starting point of 18 months imprisonment for Ms Poll, whose role in the offending was of quite a different character than the others, particularly given the efforts she made to stop the violence and to treat the victim after the violence was inflicted. 

Sentence: Mr Morris

[34]       As noted above the Judge added six months to the starting point he had adopted to reflect Mr Morris’s record of similar offending, and gave no discount for mitigating factors.  Mr King did not take issue with the uplift for Mr Morris’s prior record, but argued that this should have been cancelled out by a reduction to reflect his age (he was only 18 at the time of the offending) and the limited remorse identified by the Judge and willingness to do rehabilitative programmes.  While we see that aspect of Mr Morris’s appeal as finely balanced we are prepared to accept that some discount should have been allowed for these factors, particularly for youth, and we therefore cancel out the uplift, reaching an end sentence of four and a half years imprisonment.

Sentence: Mr Gilligan

[35]       As noted earlier, the Judge took a particularly merciful approach in sentencing Mr Gilligan.  Ms Edwards said that the approach appeared to be aimed at arriving at a term of imprisonment which was sufficiently low to bring the option of home detention into play, and argued that this was improper in the circumstances.

[36]       Ms Ord strongly urged us not to interfere with the ultimate sentence of 12 months home detention.  She said that the Judge’s merciful approach was based on his assessment that Mr Gilligan had real prospects for rehabilitation and was unlikely to reoffend.  The Judge accepted that the support which Mr Gilligan had from his family and from the Church of Latter Day Saints was such that it was, to use his words “worth taking the risk on you”.  He noted that Mr Gilligan was only 18 years old at the time of the offending, did not have any previous convictions for violent offending, had made significant changes to his lifestyle to reduce the risk of offending, and had indicated a desire to attend rehabilitation programmes.  The Judge also ordered Mr Gilligan to pay reparation of $3,000 (in contrast to Mr Morris who was not ordered to pay any reparation).   

[37]       Ms Ord said that Mr Gilligan has already paid $560 reparation and has not missed any of the $40 weekly payments.  She said that Mr Gilligan had completed 13 weeks of his home detention, which was almost a quarter of the total sentence.  He had had weekly counselling with a Family Works counsellor and had been assessed and referred to counselling in an alcohol and drug abuse programme run by the Salvation Army.  This involves weekly counselling sessions.  He no longer partakes of alcohol or drugs and has not done so since the time of the offending.  In addition he has enrolled in a business education programme, with the consent of his probation officer.  He is serving his sentence of home detention in a property where he lives with his de facto partner, his 18 month old son, and the partner’s son, who is three and a half years old.  He is responsible for the care of the two children while his de facto partner works.  He has been told that, if home detention continues after the resolution of this appeal, he will be released to attend work, and has work available through his partner’s father and his stepfather.  He attends church most Sundays and is visited by missionaries at least three times a week.  In short, Ms Ord said that he had taken the chance provided to him as a result of the sentencing approach adopted by the Judge.

[38]       The Judge allowed a discount of one year for the positive factors identified above, and a further six months for the substantial offer of reparation.  We are prepared to adopt that very generous approach, but even then we reach a figure of two and a half years imprisonment, which would not allow for the imposition of home detention.  In our view a sentence of that level was the appropriate sentence in this case.  But we are cognisant that this is a Solicitor-General appeal and the approach we should take is to adjust the sentence of the minimum extent necessary.  Given the progress that has been made by Mr Gilligan which has indicated the Judge’s approach, we have decided that we will not interfere with the sentence in this case.

[39]       We see the merciful approach taken by the Judge as an example of the approach to youth offenders mentioned in R v Mako.  In that case the Court said:

[65]       Youth and the prospects of rehabilitation may be mitigating factors.  Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences.  As noted in the judgment of the Full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers.  In some cases young offenders may have been directed by others who are older.  It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of reoffending.

[66]       However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence.  Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[40] Mr Gilligan falls within [66]. Mr Morris does not.

Sentence: Mr Bishop

[41]       As noted earlier, the Judge took a starting point of three years for Mr Bishop, whereas we consider the starting point of three and a half years ought to have been adopted.  Mr Bishop was older than the other offenders, being 24 years of age at the time of the offending, and there was therefore no room for any allowance for youth.  The Judge took into account the lower level of involvement of Mr Bishop (based on his factual findings), and the fact that he paid immediately reparation of $1,400.  He gave a discount of four months for these factors and reached a sentence of two years eight months imprisonment.

[42]       If we were to adopt a similar approach we would reach a sentence of four or five months higher than that imposed by the Judge.  Ultimately we are satisfied that on a Solicitor-General appeal we are not justified in interfering to such a minor extent, and we have decided that we will leave undisturbed the sentence which the Judge imposed on Mr Bishop.

Sentence: Ms Poll

[43]       In our view the Judge correctly assessed Ms Poll’s culpability.  She also fits within [66] of Mako.  In our view the sentence imposed by the Judge was appropriate.  We would not interfere with it. 

Result

[44]       We grant leave to the Solicitor-General to appeal but dismiss the appeal.

[45]       We allow Mr Morris’s appeal.  We quash the sentence imposed on him in the High Court and substitute a sentence of four and a half years imprisonment. 

Solicitors:

Crown Law Office, Wellington for Solicitor-General

John Miller Law, Wellington for Respondent Poll